Bromley v. Crisp

• Decision Date: 02 September 1977
• Docket Number: Nos. 75-1593,76-1043,76-1044 and 76-1988,75-1830,s. 75-1593
• Parties: Louis Jay BROMLEY, Petitioner-Appellant, v. Richard CRISP, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee. David Lee GARNER, Petitioner-Appellant, v. The STATE OF OKLAHOMA, Respondent-Appellee. Gary Michael RUTLEDGE, Petitioner-Appellant, v. Jerry SUNDERLAND, Warden, Oklahoma State Reformatory, Respondent-Appellee. Billie Jay KILLION, and Delmar Eugene Hanley, Petitioners-Appellants, v. Dave FAULKNER, Sheriff, Tulsa County, State of Oklahoma, Respondent-Appellee. Derek Lee WILSON, Petitioner-Appellant, v. Dave FAULKNER, Sheriff, Tulsa County, State of Oklahoma, Respondent-Appellee. William Lynn STRINGFIELD, Petitioner-Appellee, v. John GRIDER, Warden, Oklahoma State Reformatory, Granite, Oklahoma, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1351

561 F.2d 1351

Louis Jay BROMLEY, Petitioner-Appellant, v. Richard CRISP, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Respondent-Appellee.

David Lee GARNER, Petitioner-Appellant, v. The STATE OF OKLAHOMA, Respondent-Appellee.

Gary Michael RUTLEDGE, Petitioner-Appellant, v. Jerry SUNDERLAND, Warden, Oklahoma State Reformatory,

Respondent-Appellee.

Billie Jay KILLION, and Delmar Eugene Hanley, Petitioners-Appellants, v. Dave FAULKNER, Sheriff, Tulsa County, State of Oklahoma,

Respondent-Appellee.

Derek Lee WILSON, Petitioner-Appellant, v. Dave FAULKNER, Sheriff, Tulsa County, State of Oklahoma,

Respondent-Appellee.

William Lynn STRINGFIELD, Petitioner-Appellee, v. John GRIDER, Warden, Oklahoma State Reformatory, Granite, Oklahoma, et al., Respondents-Appellants.

Nos. 75-1593, 75-1830, 76-1043, 76-1044 and 76-1988.

United States Court of Appeals Tenth Circuit.

Argued July 9, 1976.

Decided April 12, 1977.

Rehearing Denied Sept. 2, 1977. ^*

Fred P. Gilbert, Tulsa, Okl., for petitioners-appellants in Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-1044, and for petitioner-appellee in No. 75-1988 (Andrew T. Dalton, Jr., Tulsa, Okl., on the brief).

Kay Karen Kennedy, Asst. Atty. Gen., Oklahoma City, Okl. (Larry Derryberry, Atty. Gen., Oklahoma City, Okl., on the brief), for respondents-appellees in Nos. 75-1593, 75-1830, 75-1968, 76-1043, 76-1044, and for respondents-appellants in No. 75-1988.

Mary E. Bane, of Bane & Williams, Oklahoma City, Okl., for petitioner-appellant in No. 75-1968.

Marvin E. Spears, Asst. Dist. Atty., Tulsa, Okl. (S. M. Fallis, Jr., Dist. Atty., Tulsa, Okl., on the briefs), for respondent-appellee, Faulkner, in Nos. 76-1043 and 76-1044.

Before LEWIS, Chief Judge, HILL, SETH, HOLLOWAY, McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

These habeas suits present various questions arising from the unconstitutionality of Oklahoma juvenile code provisions which have been held invalid due to a sex-based discriminatory provision allowing male youths 16 and 17 years of age to be prosecuted as adults under the State criminal laws while requiring that females of those ages be treated under the juvenile code of Oklahoma unless first certified to stand trial as adults. See 10 O.S.Supp.1969 § 1101(a). In Lamb v. Brown, 456 F.2d 18 (10th Cir.), we held that statute invalid under the Equal Protection Clause due to the sex-based discrimination since no adequate basis for the different treatment was shown. The Oklahoma court made similar rulings on sexual disparities in the children's code. Schaffer v. Green, 496 P.2d 375, 377 (Okl.Cr.).

In Lamb v. Brown, we stated that "(t)his ruling shall not apply retroactively." 456 F.2d at 20. On varying theories, the Oklahoma Courts have also held that the invalidation of the sex-based differentiation does not affect prior cases. See Schaffer v. Green, supra, 496 P.2d at 377-78; Freshour v. Turner, 496 P.2d 389 (Okl.Cr.); Dean v. Crisp, 536 P.2d 961 (Ok.Cr.). ¹ However, in Radcliff v. Anderson, 509 F.2d 1093 (10th Cir.), cert. denied, 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95, the question of retroactivity of the equal protection holding on the Oklahoma statute was presented for decision and we concluded that principles of basic fairness and essential justice required retroactive application of the Lamb decision. Id. at 1096. ²

The petitioners in these cases asserted claims in State courts under the Lamb and Radcliff principles for relief from prior convictions on the ground that their treatment as adult males at 16 or 17 denied their equal protection rights. After denial of State court relief these federal habeas suits were brought in the Northern and Western Districts of Oklahoma, and the cases have now reached us.

As the trial court noted in the Garner case (No. 75-1830), in a federal habeas suit the question whether the conviction can stand in view of the violation of the Equal Protection Clause is a federal question, just as the meaning of the Clause itself is a federal question. Chapman v. California,386 U.S. 18, 21, 87 S.Ct. 824, 17 L.Ed.2d 705. Hence the retroactivity of the Lamb principle is a federal question. See Sessor v. Gunn, 529 F.2d 932, 935 (9th Cir.), cert. denied, 429 U.S. 1111, 97 S.Ct. 1150, 51 L.Ed.2d 566. We recognize that the State Courts are fully entitled to decide such federal questions when presented to them, as they have, and we have carefully considered their opinions on the retroactivity problem. We agree with the Oklahoma Court of Criminal Appeals in its view in Dean v. Crisp, supra, 536 P.2d at 963, that the Oklahoma Courts may express their differing views on the retroactivity problem or similar federal questions until we are all guided by a binding decision of the Supreme Court. See United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir.), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148. Nevertheless, when habeas cases are properly before the federal courts they must decide federal questions such as are presented here, giving the conclusion of the State Court the weight of a decision of a court of last resort of another jurisdiction. ³ See Fay v. Noia, 372 U.S. 391, 421-24, 83 S.Ct. 822, 9 L.Ed.2d 837; Brown v. Allen,344 U.S. 443, 458, 73 S.Ct. 397, 97 L.Ed. 469; Sessor v. Gunn, supra, at 935.

The seven cases before us now involve similar basic problems flowing from the prior inequality of treatment of male youths. In No. 75-1988, Stringfield v. Grider, the district court granted the writ on the basis of the Radcliff decision. ⁴ In the remaining cases, federal habeas relief was denied on different grounds which we will detail in discussing the appeals.

No. 75-1830 Garner v. State of Oklahoma

In 1972 at age 17, petitioner Garner was convicted in a jury trial of robbery with firearms and sentenced to 18 years' imprisonment. He was prosecuted as an adult, without certification which was then required if a girl of that age was to be prosecuted as an adult. His conviction was affirmed on direct appeal. Garner v. State, 500 P.2d 1340 (Okl.Cr.). Garner then sought post-conviction relief in the Oklahoma courts, which was denied.

This federal habeas action was then brought for relief under the Equal Protection Clause, alleging discriminatory treatment against Garner on the basis of sex. The trial court conducted an evidentiary hearing. The court found that to a moral and legal certainty no juvenile court would have denied transfer for treatment as an adult, that the gravity of the offense was such that it would be unreasonable to assume that any court would have denied transfer, that the crime was not an isolated incident but one of several similar crimes, and that there was no reasonable doubt that certification would have been granted. (R. I, 137-38). The writ was denied and this appeal followed.

We turn to the main points argued for reversal. A brief of counsel and a pro se brief were combined for Garner and we have reviewed all the contentions raised.

First, petitioner says there was absolutely no evidence to support the district court's finding, nunc pro tunc, that he would have been certified to stand trial as an adult (Brief of Appellant Garner, 76-83). He argues that the statutory standard in 1971 consisted solely of whether the juvenile was capable of knowing right from wrong, that there was no independent evidence of his mental or moral state, and that certification had to be proven beyond all doubt and contradiction, citing Ex parte Hightower, 130 Okl.Cr. 472, 165 P. 624, 626-27, which was not done.

The State's proof at the federal hearing showed the following: The armed robbery offense in question occurred on June 26, 1971, when petitioner was 17 years of age, his birthdate being May 25, 1954. In 1969 at age 15 he had been made a ward of the juvenile court for delinquency, the child and parents being present. He and his parents were told that the time during a subsequent investigation would be a probationary period. In January, 1970, the child, parents and their attorney were present and Garner admitted he had been apprehended in a car he had taken unlawfully and that he had also taken five others cars in November and December. The court found he should not then be certified but should be given an opportunity in a children's institution and was in need of training to know the consequences of his acts. (R. II, 200).

In January, 1971, he pled guilty to forgery in the second degree and received deferred sentencing treatment, to which conditions for good behavior were attached. In June, 1971, he was then charged with the armed robbery in question. He was also charged with two other offenses, all three occurring on June 26 and 27, 1971. Following his January 6, 1972, jury conviction on the instant robbery charge, on February 10 Garner pled guilty, with counsel present, to included offenses of concealing stolen property on the other June, 1971, charges and received two year concurrent sentences on each. ⁵

On February 10, 1972, Garner also pled guilty, with counsel present, to an application and charge to accelerate sentencing on the earlier January, 1971, forgery offense. This application alleged violation of the terms of the deferred sentence by the three June, 1971, offenses. Garner answered detailed questions in writing, saying that he understood the charge of violation of the terms of his deferred sentence. He pled guilty and received a further two-year sentence.

Petitioner offered no evidence at the federal evidentiary hearing other than giving his name and birthdate, after which he claimed the privilege against self incrimination. His counsel challenged the sufficiency of the State's proof by proper motions.

As noted, the court found that there was no reasonable doubt that certification would have been granted. We cannot say the finding is clearly erroneous and believe the court gave the problem proper consideration. He referred to petitioner's ...